the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial.

As noted above, though, the defendant only has a right to confront the maker of a statement when that statement is indeed hearsay. Thus, when the prosecution introduces a statement, but does not introduce it to prove the truth of the matter asserted in the statement, the Confrontation Clause does not apply, a fatal problem for the defendant in United States v. Hines, 2010 WL 2123695 (4th Cir. 2010).

In Hines, a jury convicted Hassan Hines of conspiracy to possess with intent to distribute cocaine, possession of a firearm after having previously been convicted of a crime punishable by more than one year, possession with intent to distribute marijuana, cocaine, and cocaine base, maintaining a residence for distributing controlled substances, and possession of a firearm in relation to a drug trafficking crime. He thereafter appealed, claiming, inter alia, that the trial court erred by allowing a government witness to testify to statements made to him by a confidential informant who did not testify at trial.

The Fourth Circuit did not set forth the content of those statements. But what was important to the court was that these statements were not admitted to prove the truth of the matter asserted in the statements; instead, they were merely admitted to "explain why authorities undertook an investigation into Hines." Accordingly, the statements were not hearsay as defined in Federal Rule of Evidence 801(c) because they were not admitted to prove the truth of the matter asserted. Thus, the Fourth Circuit found that Hines' appeal was without merit.